If you've been following the healthcare debate - or, more accurately, the Republican-led efforts to shut down that debate - then you've probably heard that tort reform is making a comeback. Hell, if you believed the RNC's communications director Danny Diaz, you would think that tort reform was a ginormous factor in the soaring cost of healthcare in America. If you believed Rush Limbaugh, you'd think that tort reform was a silver bullet that could solve most of the problem. You'd probably feel the same way as this anonymous commenter over on ABC.com:
Obama will NEVER throw TORT REFORM on the table and that is a good 60% of the problem right nothe w! Cowards and hypocrites
That's just plain wrong.
How It Really Works
I recently ran into a woman named Jackie who had undergone surgery involving her achilles tendon. Unfortunately, the doctors who operated on her made a mistake, and left her with an achilles tendon that was too short. The result? Her heel did not reach the floor when she walked.
Think about that. Jackie can't walk anymore, without excruciating pain. She had special inserts made for her shoes, but that did little to remedy the damages. Jackie he walks with a profound limp. Eight months after surgery, and her entire body is in pain. Her spine is out of allignment as a result of her unnatural gait.
Now you would think that those greedy medical malpractice lawyers would be all over this one. After all, these are the trial lawyers getting rich from excessive jury verdicts, and funding President Obama's pro-litigation, socialist agenda. Hell, they'd be fighting each other tooth and nail to get a case like Jackie's. You'd guess they could probably make millions from a case like that.
We'll, if that was your guess, then you guessed wrong. Because Jackie has gone to 3 different lawyers, and none of them wanted to take her case. Why? Because medical malpractice cases are extremely complex, very costly to bring, very time consuming, and very difficult to win. This is why medical malpractice attorneys only actually take a small percentage of the potential medical malpractice cases that come through their door.
In conservative lingo, these are what we call market forces. I know, its a screwy concept, really. You have these trial lawyers. And you have prospective clients. But these lawyers - in spite of their incredible greed - are still subject to market pressures. In other words, existing financial incentives motivate these attorneys only to take good cases, that have a high probability of success. That's the market actually working.
Now I know. A market, where the incentives aren't perverse and actually do create desirable outcomes. Hogwash, you say. The market obviously isn't doing its job. So we need.. government intervention. We need the government to step in, and take a more active role in... reducing the number of medical malpractice lawsuits. That's basically saying this:
We need the government to get the hell into our healthcare! We need the government to stand between injured patients and the American justice system!
At least that's what it sounds like to me.
Republican Politics 101
You see, Republicans don't really like to have arguments or debates about policy. This is because they lose these debates on the merits. Instead of actually engaging in a constructive dialogue about the real issues, the Republicans much prefer to rely on slogans. Take the current healthcare debate as an example. Now someone who supports healthcare reform can't very well explain the economic necessity for healthcare reform in one or two words. Such an explanation isn't going to become the rallying cry for an angry, confused, misinformed mob. But you know what fits perfectly? Something like...
Socialism!
Death panels!
Tort reform!
And in such an environment - one that prizes sloganeering and soundbites over substance - it is easy to understand why calls for tort reform have become so popular on the right. But just because screaming for tort reform is popular doesn't actually make it any more viable as a solution to our current healthcare crisis:
Real talk: Medical malpractice costs represent only 2% of overall healthcare spending. A 2004 article from the New York Times summed it up nicely:
It may be hard to understand why 'tort reform' is even on the national agenda at a time when insurance industry profits are booming, tort filings are declining, only 2 percent of injured people sue for compensation, punitive damages are rarely awarded, liability insurance costs for businesses are minuscule, medical malpractice insurance and claims are both less than 1 percent of all health care costs in America, and premium-gouging underwriting practices of the insurance industry have been widely exposed.
So there you have it. Most injured patients don't ever sue. Most patients who want to sue can't find a lawyer who is willing to take their case. And most people who actually do get compensated suffered very serious injuries as a result of their doctors' negligence. Hell, not even Jackie could find a lawyer who was willing to take the financial risk of bringing her case to trial.
But try cramming all of that substance into a one or two word slogan. You just can't. Its a hell of a lot easier to scream, "Tort reform."
UPDATE: A number of folks have left comments expressing the basic view that I have trivialized a serious problem. These comments are generally from people who know doctors who have been sued for medical malpractice... and even one comment is from an actual doctor. Couple thoughts:
(1) That doctors view the high cost of insurance as a problem does not necessarily suggest that the root of the problem is a litigation-happy public. The facts actually indicate quite the opposite: the vast majority of injured patients never seek legal counsel, and only a fraction of those patients ever file a claim.
(2) A number of comments touched on the fear of being sued, how it motivated doctors to order additional (and often unnecessary) tests as extra cost, in order cover their bases. I'm well aware that this is happening. But this is not driven by the actual risk of being sued for medical malpractice, but rather, by the fear of such litigation. One very relevant question on point: How do insurance companies calculate the cost of premiums for medical malpractice insurance? Are those calculations based on the actual risk of being sued for medical malpractice, or rather, based on an inflated risk that is more inline with inaccurate perceptions that pervade the industry. If the it turns out to be the former, then medical malpractice insurance reform - not tort reform - would be a much more appropriate remedy.
(3) For the record, there is no empirical evidence ANYWHERE to suggest that putting economic caps on non-economic damages in medical malpractice cases has done anything to lower the cost of such insurance. In fact, medical malpractice insurance premiums often rose faster in the states that enacted such caps.